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3 lawyers test human rights cases from abroad in Supreme Court

The Supreme Court will hear a case Monday which could determine whether cases involving foreign governments committing atrocities in their own countries should be heard in the US court system.

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Hoffman had hardly opened his mouth, however, when Justice Anthony Kennedy interrupted with a question that had nothing to do with corporate liability but rather to do with the reach of U.S. courts. Justice Samuel Alito jumped in next: "What business does a case like that have in the courts of the United States?" Then Chief Justice John Roberts joined the fray. The justices wanted to know if U.S. courts had any role in adjudicating events that took place overseas. Hoffman was under assault and struggled to get back to the question of corporate liability.

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Bellinger, sitting two rows back in the public gallery, smiled. The justices were interested in his argument.

Just how interested became clear a few days later. The following Monday, Bellinger got a message on his BlackBerry. The court had asked the parties to come back and argue a new question: whether, and under what circumstances, the Alien Tort Statute applied to events on foreign soil. "It was a stunner," he said.

Clement was similarly surprised. "We didn't file the brief imagining that they were going to ask for reargument," he said. "We filed the brief thinking if the court said something favorable it would help our clients in lower courts."

When the Supreme court seeks a second round of oral arguments, it can portend a significant ruling. Brown v. Board of Education, the landmark 1954 case that ended segregation in public schools, was decided after reargument. In 2009 a second round of arguments in Citizens United v. Federal Election Commission was followed by a major decision on political spending by corporations and unions.

The court's decision to consider the wider question could have a major impact. As of August this year, there were 36 claims against corporations under the Alien Tort Statute. If the court had ruled for Shell on the narrower question - that the statute does not apply to corporations - 20 of those cases could be dismissed. However, those 20 cases could be changed to name individual corporate officers rather than the corporations as defendants. This would mean the cases could go forward. And while they would be harder to win, they would still create negative publicity. "It wouldn't stop the next wave of litigation," said Bellinger.

If, on the other hand, the court rules broadly for Shell, deciding that the statute does not apply to events on foreign soil, 29 of the current cases would likely be dismissed. The only cases that would remain are seven in which the alleged abuses took place on U.S. soil.

Earlier this month, Hoffman held a final strategy meeting at New York University Law School. His casual chinos and sneakers belied the seriousness of Monday's reargument for the survivors of human rights abuses. A ruling against the plaintiffs on the grounds that the events happened overseas would, he said, "rip the guts" out of the Alien Tort Statute.

Reporting by Rebecca Hamilton; Editing by Eddie Evans and Douglas Royalty

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